Three court of appeal judges have recently ruled that MI5’s policy of allowing agents to commit serious offences while gaining vital intelligence was legal.
The intelligence agency has been on the receiving end of many cases and complaints brought by human rights groups recently.
While the judges did hold that MI5 was not “above the law”, it concluded that any authorisation given to informants to commit serious crimes in proportionality were acceptable, per the agency’s guidelines.
Government lawyers told the court in January that, in theory, MI5 officers could authorise an informant to even kill somebody if they were in an “extremely hostile situation.”
The court’s justification for the ruling essentially boils down to the fact that the agency’s internal guidance as for when and how authorisation for crimes could be given limited what kind of damage could be caused. The guidance stipulates that authorisation can only be given where, “the potential harm to the public interest from the criminal activity is outweighed by the benefit to the public interest derived from the anticipated information the agent may provide”.
While the Home Secretary has voiced her support for the decision, saying that it recognised the role that agents play in “preventing and safeguarding victims from serious crimes”, human rights groups have indicated that they will seek to appeal to the Supreme Court.
Critics have cited multiple accusations of agents operating in Northern Ireland being accused of murder and torture, although formally bringing cases against them is a difficult procedure.
MI5 defended the actions of informants and agents by citing policies which date back to the 1950s, which state that it is often necessary to allow informants the right to commit crimes providing that it is to stop their cover being blown.
In a bid to safeguard MI5 and other intelligence agencies from future legal challenges, ministers passed a bill on 1 March 2021 to give authorisations legislative backing. While this passed in the Commons, the Scottish parliament rejected the bill.